Despite all the calls for more practically-focused, experiential and applied legal education, there is more to law school than simply learning a trade.
Legal education is a process of socialization and acclimatization to the profession, including its history, culture and traditions. All of these are arguably necessary to instill the values behind our professional responsibilities and ethics.
There is also a substantive background required of all lawyers in order to practice. Intellectual property lawyers will still have to learn about basic criminal law. And human rights lawyers are required to learn the basics of contract law. The substantive framework is part of the accreditation process.
Although all lawyers learn constitutional law in law school, there may still be some gaps in the conceptual background we provide. This was highlighted by the new Calls to Action released this week by the Truth and Reconciliation Commission,
27. We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal– Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.
Of course the best place to start this training is in the law schools themselves,
28. We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and antiracism.
This can actually be accomplished with very little changes to the existing law school curriculum.
I recall during my law school days at Western Law that one of the small sections in my first year learned property law almost exclusively from an Aboriginal perspective. This was based on the interest and the design of the specific professor, who had a passion for the area. Of course the students, who all intended (and mostly accomplished) to be Bay-Street bound, resented this focus enormously, not appreciating its importance.
Similarly, courses which are already part of the mandatory FLSC accreditation can be modified slightly to include greater emphasis and incorporation of Aboriginal legal issues.
The purpose of this is not to necessarily prepare these students for practice in the area of Aboriginal law, but to impress on them the importance of these issues for a proper understanding of our legal system.
Not that Aboriginal laws haven’t influenced our legal system.
The notions of democratic government found in the U.S. Constitution itself may have borrowed concepts or been influenced by the Iroquois Confederacy. The US Senate Resolution 331 in 1988 stated in its preamble,
To acknowledge the contribution of the Iroquois Confederacy of Nations to the development of the United States Constitution and to reaffirm the continuing government-to-government relationship between Indian tribes and the United States established in the Constitution.
Whereas the original framers of the Constitution, including, most notably, George Washington· and Benjamin Franklin, are known to have greatly admired the concepts of the Six Nations of the Iroquois Confederacy;
Whereas the confederation of the original Thirteen Colonies into one republic was influenced by the political system developed by the Iroquois Confederacy as were many of the democratic principles which were incorporated into the Constitution itself…
The American constitution, and in particular, the American Bill of Rights, was to lay the foundation and precursor to our Charter. The American Civil War, and the Storming of the Bastille, were the catalysts to the creation of Canada itself.
Although the roots of the residential school system, the focus of the recent Truth and Reconciliation Commission report, date to pre-Confederation industrial schools, it was largely solidified in 1876 and the Indian Act. The first industrial school for Aboriginals was in 1883 in Saskatchewan.
The report focuses extensively on the effect of the Act on Aboriginal identities, including cultural and spiritual practices, family structures, and official status. It focuses extensively on Canada’s founding father, John A. Macdonald, and his views on Aboriginals in creating the residential schools. After defining the term “cultural genocide,” the report quickly turns to Macdonald’s statement to the House of Commons in 1883,
When the school is on the reserve the child lives with its parents, who are savages; he is surrounded by savages, and though he may learn to read and write his habits, and training and mode of thought are Indian. He is simply a savage who can read and write. It has been strongly pressed on myself, as the head of the Department, that Indian children should be withdrawn as much as possible from the parental influence, and the only way to do that would be to put them in central training industrial schools where they will acquire the habits and modes of thought of white men.
Our legal system has grown since then, but could probably benefit more from Aboriginal traditions. Civil litigation, in particular in personal and family disputes and vulnerable populations, suffers enormously from its structure within the adversarial system. Even with mandatory mediation, the relationships between parties are often irreparably damaged.
Aboriginal legal traditions may even assist in criminal law. Instead of adopting (failed) mandatory minimum sentencing provisions from the U.S. and promoting a “tough on crime” mandate, we should strongly consider a more restorative models such as sentencing circles and healing circles. Janelle Smith, in looking at American policy in this area in 2003, stated in the Hamline Journal of Public Law and Policy,
Rather than releasing prisoners and repealing mandatory minimum sentences, states could curb costs incurred by their department of corrections and their formal justice system through the use of peacemaking circles…
Peacemaking circles benefit communities by incorporating “local concerns and rely[ing] extensively upon local resources to implement sentencing plans”. Since peacemaking circles use community based resources they are able to generate “substantial savings by lowering process[ing] costs and by improving results.”
Susan Daicoff notes that shifts towards problem solving courts based on therapeutic jurisprudence, focusing on interdisciplinary factors of healing and relationships, have evolved in the areas of drug treatment, mental health, domestic violence and unified family. She presents this comparison:
|Traditional Process||Transformed Process|
|Dispute resolution||Problem-solving dispute avoidance|
|Legal outcome||Therapeutic outcome|
|Adversarial process||Collaborative process|
|Claim- or case-oriented||People-oriented|
|Rights-based||Interest- or needs-based|
|Emphasis placed on adjudication||Emphasis placed on post-adjudication and alternative dispute resolution|
| Interpretation and
application of law
| Interpretation and
application of social
|Judge as arbiter||Judge as coach|
|Backward looking||Forward looking|
|Few participants and stakeholders||Wide range of participants and stakeholders|
Daicoff notes that these concepts are already finding their ways into legal education, and suggests that they could be central in addressing the psychological distress observed in practice. She concludes,
The idea of recognizing law’s potential to have a positive impact on people’s lives and of creating alternative means of resolving legal problems may provide hope during a time when the reliability, utility, or rationality of law and legal procedures are in question.
The Truth and Reconciliation Commission calls for educational reforms across many industries (paras 57, 92), and reform to education itself (paras 6-12, 62-65). It calls for equity of Aboriginals in the Canadian legal system (paras 50-52).
But what it really calls is for full recognition of Aboriginal peoples as an integral part of our legal system and social fabric. The best way it illustrates this is the call in para 94 to modify the Oath of Citizenship as follows:
I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada including Treaties with Indigenous Peoples, and fulfill my duties as a Canadian citizen.
Placing First Nations and Indigenous Peoples front and center of our oath, and equating the laws of Canada with the country’s fiduciary obligations, helps reconcile the injustices done in this country since before its inception.
That’s not just a truth for law students in law schools, wherever they end up in the profession. Gerald Caplan wrote in The Globe,
So as Justice Murray Sinclair says: “We must remember that this is a Canadian story, not an indigenous one.” This is about the entire story of Canada, from first to now. What does that tell us about ourselves? What kind of people are we really? And are we prepared to change?
Well, are we?